교육의 자유와 국가의 역할 - 사립학교의 자유를 중심으로 -

Abstract

Article 31 of the Constitution of the Republic of Korea stipulates the right of all citizens to receive an education. This generally encompasses the idea of this right being a fundamental social right. Considering that the principle of the social state is understood as a basic principle of the Constitution, that fundamental social rights are stipulated in the Constitution, and that education has significant realistic and normative implications, it is natural that the role of the state in education is deemed highly important. However, this does not mean that education should solely be under state responsibility. In the most fundamental sense, parental education of their children is an exercise of natural freedom, and the significance of the freedom of private schools can be recognized in this context. Today’s free and democratic state envisages the realization of a legal and political order that enables free individuals to coexist and prosper as the fundamental starting point of its existence. If education is understood to be only an obligation of a nation as a social state, it would be difficult for the state to act upon the original significance of its status as a guardian of the core values and order of the community that promotes the freedom of different individuals. Following the era when religion occupied the dominant position in education and since the adoption of modern constitutionalism, the cultivation of knowledge and qualifications by members of a political community formed at the national level has become the public goal of education. As the state carried out the task of establishing practical conditions for freedom and equality to thrive, the state’s role in education has been further expanded and justified. However, education is not merely a transfer of a certain consensus shared among members of a political community or a preparatory process that enables economic activity. It goes beyond such functions —it belongs to even a higher dimension in that it has profound significance extending to a very personal and intimate realm that includes exploring, challenging, reflecting on, and envisioning the reality and meaning of existence and life. As a result, it is outside the capacity of the state to provide diverse educational programs on a sufficient scale that meets the personality and judgment of different individuals; even if this were possible, it would not be appropriate. Through the diverse and creative education of private schools, a wide range of possibilities for the realization of individual character and development of personality can be guaranteed.